By Kebba Jeffang
Justice Emmanuel Amadi is expected to deliver a ruling on an application for bail submitted by the defence and objected to by the prosecution on Tuesday, 25th November, 2014 concerning Mr. Momodou Sabally, the former Secretary General and Head of the Civil Service and Minister for Presidential affairs.
This proceeding took place on Monday, 17th November, 2014 at the Special Criminal division of the High Court of the Gambia in a congested court room fill with relatives and sympathizers.
When the matter was called, Mr. Barkun, the Director of Public Prosecution (DPP) appeared for the state whilst Lawyer Antouman Gaye represented the accused person.
The defence counsel informed the court that there is a motion on notice dated 16th October, 2014. He explained that the accused person had applied for bail. He said the motion is supported by 33 paragraphs of affidavit; adding that it is very important simply because it is sworn to by someone very close to the accused person and that is the wife, Jainaba Teeda Sarr. He said they are relying on all the paragraphs in the affidavit.
He added that there is an affidavit in opposition which is sworn to by Mam Fatou Secka who is a Legal Clerk at the A.G Chambers and that it has three paragraphs. He added that there is also an affidavit in reply which again is sworn to by the wife of the applicant.
In moving the application, the defence counsel submitted that all the offences the applicant is charged with are bailable offences. He said granting bail to the appicant in the nature of the case is permitted by the provisions of both the Constitution of the Gambia as well as the Criminal Procedure Code (CPC).
Quoting section 19 (4) of the constitution, Counsel Gaye said: “where any person is brought before a court in execution of the order of a court in any proceedings or upon suspicion of his or her having committed or being about to commit an offence, he or she shall not thereafter be further held in custody in connection with those proceedings or that offence save upon the order of a court.”
Lawyer Gaye further quoted section 19 (5) that “if any person arrested or detained as mentioned in subsection 3 (b) is not tried within a reasonable time, then without prejudice to any further proceedings which may be brought against him or her, he or she shall be released either unconditionally or upon reasonable conditions, including, in particular, such conditions as are reasonably necessary to ensure that he or she appears at a later date for trial or proceedings preliminary to trial.”
He submitted that the accused person was arrested since 7th July, 2014 and was taken to the National Intelligence Agency by two NIA operatives whom the appellant said he doesn’t know who they are. He said his client has been under NIA custody until the 11th August, 2014 without any criminal charge against him. He said his client has now spent 4 months 10 days under detention in two different places.
Counsel Gaye further submitted that his client’s case was supposed to proceed on the 14th October, but was stalled due to Inauguration of a building at the AG Chambers. He said in a criminal matter when a court adjourned a case, the accused person on bail according to CPC provisions, the maximum period shall be 14 days for an accused person without bail but for an accused person on bail the adjournment shall not exceed seven days.
He added that according to section 226 of the CPC, the accused person based on security could be remanded but should not be more than two (2) months at one place. He further pointed out that paragraph 16 of the applicant’s affidavit states that there was no sitting on an adjourned date due to the Counsel’s engagement in the process of inaugurating the AG Chambers building.
In commenting on the content of the 3 paragraph affidavit in opposition sworn to by Mam Fatou Secka, Mr. Gaye said paragraph 2 is the only one in which the deponent is sticking to her personal knowledge and paragraph 3, is divided into sub paragraphs A to H. Except paragraph 2, everything else is coming from Mr. Barkun. “One may wonder by virtue of the provisions of the said affidavit, what capacity is Mr. Barkun appearing as; whether he is a witness or a lawyer,” questioned Mr. Gaye.
He argued that such people like investigative panel from the NIA or the police is expected to speak rather than DPP as a lawyer in the case, to be stating all the information on the affidavit.
“Question arises whether DPP is speaking to his own knowledge because the source of information is not known,” said Lawyer Gaye.
Gaye further submitted that the said affidavit is not in compliance with section 92 of Evidence Act due to its nature because the name and time is mentioned but the particulars including the place and the circumstance should also be given which he said are not stated in the affidavit.
“It is a law of criminal matter that nothing should be taken for granted. It is a matter of substance and not just a mere point. The laws are made by the National Assembly Members who are representing all the people of the country, so therefore it is a duty bound to anyone to respect the law,” Gaye told the court.
He cited the principles of bail adding that the accused person has all the qualification to be granted bail. He said the gravity of the offence committed, whether he will appear in court if granted bail, whether he would abscond, whether he will interfere with the course of the process, whether he will have sureties are all being fulfilled.
“I submit that continuous detention of the appellant is to erode the constitutional provision of assuming the accused person innocent until proven guilty by court. I urge your lordship to grant the application with a reasonable condition,” said Counsel Gaye.
In reply, defence Counsel Barkun, the Director of Public Prosecution (DPP) said they have filed a four paragraph affidavit in opposition and they are relying on all the paragraphs. He said it is a provision of law that bail application is a matter of discretion of the court under section 99 of CPC which he said is the reason for the application. He said the court should exercise this judiciously and judicially.
“For the court to exercise judiciously and judicially, facts should be made by both sides,” said the DPP.
DPP argued that paragraphs 1 to 25 of the applicant’s affidavit are not the reasons for the granting of application, though from paragraph 26 to 33 may to a certain point.
“The nature of the charge is 8 counts charge dated 22nd October, 2014 and it includes economic crimes, abuse of office, giving false information to a public officer, etc. The maximum sentence of the first count (economic crimes) is ten years imprisonment, comparatively not more than ten years. Ten years is not ordinary sentence,” said DPP.
He further submitted that they have carefully looked at the evidence to show that prosecution has a strong case against the accused person with quite number of witnesses. He stressed that the accused person may run away if granted bail looking at the nature of the case. He cited the example of Benedict Jammeh who jumped bail upon granted bail and opined that a similar thing may happen to the accused person too.
“The nature of the case is less serious than a rape, murder or treason but investigation is still ongoing that has no connection with these charges and there is a likelihood that other new charges may be brought against him. We are submitting that section 99 is not a reason for granting bail,” said DPP Barkun.
DPP also argued that their affidavit is in line with the Evidence Act and quoted section 155 of the Act as indicated by the defence counsel.
In reply, the defence Counsel Gaye told the court that he could not know what is in the heart of the accused person if granted bail but argued that every case should be ruled on its own peculiar facts and not the experience of others as Benedict Jammeh has been mentioned by the DPP.
At this juncture, the trial judge adjourned the matter to 25th November, 2014 at 3: 30pm for ruling on the application.